People v. Carter CA2/1

Filed 6/1/22 P. v. Carter CA2/1
Opinion following rehearing
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B311329
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA419941)
v.
ERIC TYRONE CARTER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Eleanor J. Hunter, Judge. Remanded with
directions.
John L. Staley, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven E. Mercer and Noah P. Hill, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
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In 2016, the trial court sentenced defendant and appellant
Eric Tyrone Carter to 39 years 8 months in prison for convictions
arising from his participation in a spree of armed robberies.
We affirmed the convictions but, in light of the Legislature’s
enactment of Senate Bill No. 620 (2017−2018 Reg. Sess.) (Senate
Bill No. 620), which gave trial courts the discretion to strike
firearm enhancements when imposing sentence, we remanded
the case to allow the trial court to consider striking those
enhancements from Carter’s sentence. The trial court declined
to strike any enhancements. Carter now contends that we must
remand the case once again in light of the recently enacted
Senate Bill No. 567 (2021−2022 Reg. Sess.) (Senate Bill No. 567),
which requires the court to apply a presumption in favor of
selecting the lower term when imposing a determinate sentence
on defendants who were younger than 26 years old when they
committed their offense. The Attorney General agrees that
Senate Bill No. 567 applies retroactively to Carter and requires
a remand for resentencing, as do we.1
FACTS AND PROCEEDINGS BELOW
Carter and his codefendant Rasheen Childs committed
six armed robberies of convenience stores and gas stations in one
week between December 27, 2013 and January 2, 2014. Carter
was 22 years old at the time of the offenses. A jury, in addition
1 Carter also contends that we must remand the case to
allow the court to consider striking his five-year enhancement
under section 667, subdivision (a)(1) in light of Senate Bill
No. 1393 (2017−2018 Reg. Sess.) (Senate Bill No. 1393), which
gave the trial court the discretion to strike such enhancements.
Because we remand the case for a full resentencing hearing in
light of Senate Bill No. 567, we need not decide whether Senate
Bill No. 1393 provides a separate ground for a resentencing
hearing.
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to convicting Carter of seven counts of second degree robbery
(Pen. Code,2 § 211), found true allegations that Carter personally
used a firearm in the commission of three of the robberies
(§ 12022.53, subd. (b)), as well as allegations that a principal had
been armed in the four remaining counts. (§ 12022, subd. (a)(1).)
The court found that Carter had a prior strike conviction (§§ 667,
subds. (b)−(i), 1170.12), a prior serious felony conviction (§ 667,
subd. (a)(1)), and one prison prior. (§ 667.5, subd. (b).)
The court imposed a total sentence of 39 years 8 months
in prison, calculated as follows: on one count of armed robbery,
the middle term of three years, doubled to six years due to the
prior strike, plus 10 additional years for the enhancement for
personal use of a weapon, for a total of 16 years. (§ 12022.53,
subd. (b).) On two additional counts of armed robbery, the
identical sentence described above, multiplied by one-third,
for a term of 5 years 4 months each. On four additional counts,
two years each, consisting of one-third the midterm of each
offense, doubled. In addition, the court imposed a five-year
term for the prior serious felony (§ 667, subd. (a)(1)), but did not
impose a sentence for the prison prior enhancement under
section 667.5, subdivision (b). The court ordered Carter to serve
all the terms consecutively.
We remanded the case to allow the trial court to consider
striking the firearm enhancements in light of Senate Bill No. 620.
(People v. Carter et al. (Apr. 13, 2018, B275973) [nonpub. opn.].)
At the resentencing hearing, the trial court decided not to strike
the firearm enhancements. The court noted that Carter had been
a “serial robber,” committing several robberies in the span of a
few days, that he had been an active participant in the crimes,
2 Unless otherwise specified, subsequent statutory
references are to the Penal Code.
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and that he had chosen “particularly vulnerable victims” in the
convenience store clerks.
DISCUSSION
On January 1, 2022, while this appeal was pending,
Senate Bill No. 567 became effective. The legislation enacted
section 1170, subdivision (b)(6), which directs the court as
follows when deciding whether to impose the upper, middle,
or lower term in a determinate sentence: “[U]nless the
court finds that the aggravating circumstances outweigh the
mitigating circumstances that imposition of the lower term
would be contrary to the interests of justice, the court shall
order imposition of the lower term if any of the following was a
contributing factor in the commission of the offense: [¶] . . . [¶]
(B) The person is a youth, or was a youth as defined under
subdivision (b) of [s]ection 1016.7 at the time of the commission
of the offense.” Section 1016.7, subdivision (b) defines a youth
as “any person under 26 years of age on the date the offense was
committed.” Before Senate Bill No. 567 became effective, the
statute placed “the choice of the appropriate term . . . within the
sound discretion of the court” (former § 1170, subd. (b)), with no
presumption in favor of the lower term for youth offenders.
Both Carter and the Attorney General, agree, as do we,
that Carter is entitled to benefit from Senate Bill No. 567.
When the Legislature enacts a statute that reduces or
potentially reduces the punishment for an offense, we “assume,
absent evidence to the contrary, that the Legislature intended
[the] ‘. . . statute to apply to all defendants whose judgments
are not yet final on the statute’s operative date.’ ” (People v.
Lopez (2019) 42 Cal.App.5th 337, 341.) Senate Bill No. 567
benefits young defendants by making it more likely that they
will receive a reduced sentence for an offense, and there is no
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indication that the Legislature intended to limit its application.
Thus, the law applies retroactively to defendants like Carter
whose sentences are not yet final. (People v. Flores (2022) 73
Cal.App.5th 1032, 1039 (Flores).)
One aspect of Carter’s sentence is affected by Senate
Bill No. 567. On one count of armed robbery, identified in the
information as count 28, the court imposed the middle term
sentence of three years imprisonment, doubled to six years
because of Carter’s prior strike conviction. (See § 667,
subd. (e)(1).) We must remand the case to the trial court to
decide whether to reduce the sentence on this term in light
of the new law. (Flores, supra, 73 Cal.App.5th at p. 1039.)
The remainder of Carter’s sentence consisted of enhancements
and subordinate terms for which the trial court did not choose
an upper, middle, or lower term. Nevertheless, under the
full resentencing rule, the court may reconsider all of its prior
discretionary decisions when resentencing Carter. (See People v.
Buycks (2018) 5 Cal.5th 857, 893.)
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DISPOSITION
The case is remanded to the trial court for a new
sentencing hearing in conformance with this opinion. Upon
completion of resentencing, the trial court is directed to prepare
an amended abstract of judgment and to forward a certified
copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
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